1918 Treaty Used to Cut the Flow Into Kesterson

The Migratory Bird Treaty Act, cited by the Department of Interior as its justification for shutting off irrigation water that flows into the Kesterson National Wildlife Refuge, requires Canada, the United States and Mexico to manage and protect migratory bird populations.

The treaty, adopted by the United States in 1918, is an "overall tool for the management of waterfowl" and charges the secretary of the Interior with the responsibility of protecting migratory birds, according to Craig Rieben, a spokesman for the U.S. Fish and Wildlife Service in Washington.

Rieben said it is "extremely unusual" for the federal government to go to the lengths that it did when it took the Kesterson action Friday. But, he noted, the treaty has been used in the past to support a wide range of regulations.

Ban on Indian Artifacts

For example, the U.S. Supreme Court in 1979 upheld an Interior Department ban on the sale of Indian artifacts that contain feathers or other parts of rare migratory birds, even if the artifacts were made long before the act was passed. The regulation, which was based on the treaty, prohibits the killing of certain rare birds, and the court ruled that people who trade in Indian artifacts would have a strong incentive to kill rare birds to replace missing feathers.

The treaty was adopted because "people were shooting the stew out of them (migratory birds)," Rieben said. "The populations became depressed, and we agreed (under the treaty) that we would set up the mechanisms" to protect the resource.

That includes the enforcement of hunting regulations and the provision of suitable habitats to ensure the health of the bird population, Rieben said. The money from duck stamps, which hunters are required to buy, is used to acquire and maintain habitats.

The treaty went into effect in Canada in 1917, in the United States in 1918 and in Mexico in 1936.